What is wrong with the Ethical Framework?

A consideration of the new BACP Ethical Framework and its implications

Peter Jenkins

Professional ethics in the therapeutic world is currently dominated by discussion of the new version of the BACP Ethical Framework (2015). This has involved a major process of rewriting, consultation, comparison with other similar professional codes and membership acclimatisation prior to its introduction in 2016. The new Framework, as opposed to a code of ethics, builds on the previous version first introduced at the turn of the century. It acknowledges the growing impact of digital versions of therapy and the changing landscape of professional practice, incorporating, somewhat controversially, coaching along with counselling and psychotherapy as part of the counselling professions. The introduction of a new, extensively revised framework provides a useful opportunity to take stock of the BACP’s ethical journey so far and its current direction of travel. Inevitably, this also will involve frequent reference to the writing and influence of Tim Bond, chief architect of the new framework. Bond has maintained a huge influence on the development of ethical thinking in counselling and psychotherapy since the 1990’s.

Exploring the new Ethical Framework involves addressing two inter-related questions. The first is about process, in trying to answer the question of ‘how did we get to here?’ The response will look at some of the key influences, both internal and external, which have shaped the eventual form of the new framework. Secondly, there is the question of ‘what is new, or different, about the Ethical Framework?’

How did we get to here?
The Ethical Framework has been subject to a widespread and thoroughgoing process of introduction and evaluation using presentations and webinars. BACP does this kind of member consultation very thoroughly and with undeniable professional élan. However, ultimately, this is a ‘top-down’ process of consultation. This may perhaps be inevitable, given the complexity of rewriting ethics codes and the substantial size of the membership base. One recent commentator on the development of ethical codes describes this as an ‘armchair approach’, via “a task-force committee that reviews ethics codes of similar professional associations, drafts a code of ethics, then makes it available to its large membership before a final version is developed by the same task-force” (Sivis-Cetnkaya, 2015:476). This is contrasted with a more explicitly research-based approach, where “ethical dilemmas are collected from a representative sample of the members of the profession and are used to establish or revise the code”. This type of approach was used, for example, by the American Psychological Association in 1953. Redrafting and consultation may enable expert opinion to draw on and be informed by members’ experiences. However, this process may lack the critical edge provided by research data on the nature and incidence of particular kinds of dilemmas faced by the membership.

In terms of the BACP’s ethical journey, it may be hard for more recent members to appreciate the key events which have shaped its arrival at its current position, as provider of a key reference point in ethical debate, in the form of the new framework. In trying to answer the question of ‘how did we get to here?’, it perhaps falls to those of us, with short CVs, but long memories, to offer a view.

Key defining moments
There seem to have been at least two key, defining moments in shaping the emergence of the BACP as a dominant influence in therapeutic practice with its own distinctive ethical voice. The first of these was the hostile media coverage in 1996 of a ‘sting’ by the consumer affairs programme, ‘Watchdog’. Bernard Manning, a comedian with self-proclaimed offensive views, was able to become (briefly) a member of the then BAC (BBC, 1996). This was hugely embarrassing for the BACP. It arguably represented a major turning point in its overall professionalisation as a body. It led to the current stricter membership categories and vetting controls which now characterise admission. While recent members may be largely unaware of this incident, and it is difficult to prove its impact in any definitive manner, it seems likely that this somewhat traumatic incident has become encoded into the organisational DNA of the organisation. It appears to have contributed to the BACP’s observable shift from being an association of well-meaning volunteers to a rule-based and performance-driven modern entity.

Statutory regulation or voluntary registration?
The second major influence has been in the form of the collapse of the project to achieve statutory regulation for counselling and psychotherapy following the change of government in 2010. It is hard to overstate the continuing psychological impact of this on the organisation and its membership. BACP members will often talk as though statutory regulation is still somehow ‘on its way’, rather than being decisively erased as a credible policy option, at least for the foreseeable future. To its credit, BACP has changed its policy goals and rapidly adapted to the world of voluntary registration and to applying the corresponding categories of registered membership. However, its signal and bitterly-felt failure to achieve statutory regulation had immediate implications for the role of the Ethical Framework. Statutory regulation by the Health and Care Professions Council (HCPC) would have entailed adoption of a binding, rule-based ethical code. Under this code, ethical breaches could have led to dismissal and to a legal ban on future practice as a counsellor or psychotherapist. The BACP, and other therapist organisations, are now faced with the challenge of how to operate a register of therapists on a voluntary basis and how to underpin this process with an Ethical Framework which does not carry the force of law. How the Ethical Framework may serve to address this key problem is explored in more detail at a later point in this paper.

Key drivers and influences on the Ethical Framework
Clearly, the process of devising and adapting ethical codes is a complex and messy process which defies easy categorisation. Still, there does seem to be a difference about the way in which the original codes of ethics were developed in the 1980s and 1990s and how the current Ethical Framework is responding to changes in the world of practice. Bond (1991) has described how the earlier BAC Code of Ethics (1984, 1990) underwent significant changes. These were as a direct result of the challenges that members had experienced in two key problematic areas. These were in responding to the perceived risk of client suicide and to the issue of defining and prohibiting sexual relationships between counsellors and their clients. Interestingly, his discussion also referred to the “informative and persuasive” nature of the code and confirmed that it lacked “any legal standing” in a court of law.

Bond seems here to be emphasising the importance of internal drivers in influencing changes in the code of ethics, ie members’ experiences in mediating their interactions with agencies such as the courts. Arguably, this internal process contributed to the shift away from multiplying codes of ethics (eg developing separate codes for counselling skills, for counsellors, for trainers, for supervisors, etc). It moved instead towards a flexible framework, which could encompass a wide range of role-based behaviours, but which was built around a common core of ethical statements.

This process of responding to internal drivers, deriving from the experiences of members, seems now to have changed track to locating the major drivers for ethical change in external influences, particularly those based in the medical profession (Bond, 2005). In a more recent piece, Bond (2015) turns to the influence of the Francis Inquiry (2013) into the Mid-Staffordshire NHS Trust, to pose the need to adopt some of its recommendations. These included a ‘duty of candour’ towards clients, and Francis Report’s proposed incorporation of standards and values from the NHS Constitution into all future contracts of employment.

Medical ethics and the Francis Report
Counsellors clearly need to be alert to on-going ethical and professional discussions about ethics in other, parallel professions. However, medical ethics has now emerged as a key reference point in the discourse underpinning some of the changes to the Ethical Framework. This is problematic for a number of reasons. Bond suggests that such changes might be necessary “if we are to avoid our own versions of the Mid-Staffordshire scandal” (2015:17). Without minimising the distress experienced by patients and their relatives at the Mid-Staffordshire NHS Trust, the differences between counselling practice and the medical and nursing practice criticised in the Francis Report seem to be much more telling than their similarities. Therapists work in a wide range of contexts and not predominantly inside the NHS. Counsellors and psychotherapists have a limited potential to cause other than psychological harm to their clients, crucial though this form of harm may be. It is also problematic to import the conclusions of the Francis Report in an uncritical way. It is important also to register the role of political and resourcing factors at work in Mid-Staffs, such as the drive for NHS Foundation Trust status, as contributory forces in the apparent collapse of normal nursing and medical standards in certain wards at that time (Jenkins, 2013a). No doubt the subliminal message from Francis of ‘avoid future health scandals’ can be subjected to a positive re-frame, as ‘adopt best current ethical standards’. However, it still may lack a strong emotional pull, or element of traction, for many BACP members. Furthermore, the very mixed, and sometimes damaging, experience of adopting a medical template for counselling research ethics in the Higher Education field should perhaps introduce a note of caution in moving too far and too fast down this particular quasi-medical ethics route (Jenkins, 2013b).

This shift towards the primarily external reference point of medical ethics to validate changes to the ethical framework may be unconvincing for some BACP members. However, it may well contribute to a much broader professional project. This is to re-position BACP alongside other organisations, such as the British Psychological Society and United Kingdom Council for Psychotherapy and to strengthen the BACP’s authority in the voluntary registration ‘corridors of power’.

What’s new in the Ethical Framework?
Our second question was ‘what is new, or different, about the ethical framework?’ There are a number of new features of the revised Ethical Framework, not least that it covers coaching, as well as counselling and psychotherapy amongst the ‘counselling professions”. This is an astute move which neatly heads off any temptation for coaches to set up their own separate professional organisation. The Ethical Framework adopts the duty of candour, or openness and congruence, deriving from the Francis Report. It starts with a commitment to clients, expressed through ethics and good practice. Being trustworthy is highlighted as a key ethical commitment. This completes a process of replacing the earlier predominance of the principle of ‘autonomy’ with that of ‘fidelity’ which has been under way for some time (Bond, 2007, 2008). It accelerates the process of shifting from an outcomes model of ethics towards introducing rules, more diplomatically termed here as ‘commitments’. Thus, the Ethical Framework requires “keeping accurate and appropriate records”, as opposed to advising members to keep records, as under the previous version (BACP, 2010). This change is probably inevitable, given the role of data protection law, team working and the continuing interest of the courts in records of therapy. Finding the right tone is often a problem in drafting ethical codes (ie distinguishing between ‘should’ and ‘ought’). It adopts a similar device to the General Medical Council’s useful and elegant solution in using the language of ‘we will’ or ‘we must’ (GMC, 2013).

These changes are not contentious in themselves. The proof of the ethical pudding will be in terms of how it shapes and supports therapist and client behaviour, as measured, at least in part, by the numbers of future complaints. Research suggests that complaints against BACP members tend to involve a small minority of members, despite the frisson of anxiety many members might experience in reading through the back pages of Therapy Today reserved for their coverage (Khele et al, 2008). In contrast, legal action against therapists for breaches of contract or for professional negligence currently continues to remain at no more than a low and somewhat anecdotal level.

Problems for the Ethical Framework
Any new code faces a number of barriers to its adoption. The first is that of authenticity, in other words its perceived relevance to and ownership by, its members. The Framework largely achieves this through its use of language and its consonance with members’ concerns about best practice. The second challenge is that of achieving appropriate compliance by members. Here, there are some potential difficulties. One is that the Ethical Framework is to be underpinned by legal guidance, much of which has yet to be finalised. In essence, BACP members are bound to accept a new contract for binding their professional behaviour, but one where the detailed terms and conditions have yet to be spelled out – what my relatives in Canada might well describe as ‘buying a pig in a poke’.

Secondly, there is an increasing tendency within the BACP to see the law as a purely ‘technical’ issue, rather than one dependent on conflicting values and interpretations of the law. It is worth remembering, after all, that the UK government invasion of Iraq in 2003 was based on what was presented at that time as constituting ‘sound legal advice’. Counsellors are probably unlikely to challenge the fine detail, or even the overall tenor, of legal guidance. The presentation of the law in support of the Ethical Framework thus becomes a crucially important aspect, in achieving their full understanding and compliance.

What are these potentially problematic areas relating to legal guidance? One concern is the weight given to statutory guidance in the BACP’s published legal resources series, such as the emphatic statement “All therapists should comply with child protection law…” (Bond and Mitchels, 2015: 160). This seems to rather understate the considerable degree of therapist discretion for those therapists working in the third sector or in private practice. Another contentious issue is the way that the differences between a legal contract (essentially payment of a fee, in return for therapy) and the therapeutic contract (confidentiality, cancellations, etc) are apparently minimised in the legal guidance and published legal resources. It is mooted that a legally binding contract can apply to minors under 18 years. This is correct, although this is normally restricted to ill-defined ‘necessities,’ rather than to therapy (Mitchels, 2015:10). Citing somewhat obscure case law on bus passes, it is observed that a contract does not necessarily require payment as such (Mitchels and Bond, 2010:49). Elsewhere, it is suggested that this broader concept of a legal contract might, therefore, be relevant, even in the context of non-fee-paying services, such as the NHS (Mitchels and Bond, 2010:49). However, if the latter argument was correct, it would rather tend to overturn the past fifty years of medical negligence litigation which is clearly based on tort law and not on the law of contract.

Conclusion
Radically redrawing the accepted definition of a legally binding contract downwards to include young people and across to include non-paying therapy service providers (eg the NHS) conflicts with many of the more traditionally established requirements for a legally binding contract under English law. However, it does serve to tie the Ethical Framework much more closely to therapy, in that the Framework would then, arguably, provide the legal terms and conditions applying to the therapist’s work with clients, wherever they use a therapeutic contract. Adopting the proposals of the Francis Report, discussed above, would further reinforce this process. The Ethical Framework would become incorporated into the therapist’s contract of employment, initially in the NHS, and then, by degrees, this would be extended to all therapist employment. The problem of achieving the legal compliance of therapists with professional codes, previously thwarted by the failure of statutory regulation, is instead finally resolved, but by a less publicly transparent and accountable route.

Peter Jenkins was a member of the BACP Professional Conduct Committee from 2000-2006, and of the UKCP Ethics Committee from 2006-13. This article is written in a personal capacity. Peter.Jenkins-2@manchester.ac.uk

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